The Committee's correspondence regarding
the draft EURODAC Convention
Letter from Justice to Lord Tordoff, Chairman
of the Select Committee on the European Communities
I am writing with regard to the draft Convention
concerning the establishment of "EURODAC" for the comparison
of fingerprints of applicants for asylum (doc no. 10191/1/97 ASIM
187), as recently forwarded to the European Parliament for consultation.
We understand that this is on the agenda to be signed at the Justice
and Home Affairs Council meeting on 4-5 December 1997.
JUSTICE believes that the draft Convention raises
a couple of significant human rights issues which should be addressed
before it is signed.
First, it appears from the draft Convention
that the role of the Court of Justice has not yet been decided.
Although the draft contains two articles (Articles 15 and 16)
which confer jurisdiction on the Court to hear disputes between
Member States as well as preliminary references, these are placed
in brackets. We believe that the Government should be asked to
clarify its position on this.
It is vital that the Court should have full
jurisdiction over the Convention to ensure its uniform application
throughout the EU in accordance with the requirements of the 1951
Geneva Convention (as amended by the 1967 New York Protocol) and
other obligations arising under international human rights law.
Indeed, the Treaty of Amsterdam provides for the transfer of the
subject matter of the EURODAC Convention from the third to a new
Title in the first pillar (new Title IV TEC), thus granting jurisdiction
to the Court of Justice. The UK has the right to opt-in to the
new Title, and has indicated that it might use this right with
regard to policy areas in which it already cooperates (as stated
in evidence by Mr Doug Henderson, Minister for Europe, before
the House of Commons European Legislation Select Committee on
12 November 1997).
Second, the preamble of the Convention should
require application of the EC Data Protection Directive 46/95.
This provides individuals with stronger and more effective data
protection rights than the 1981 Council of Europe Convention which
the draft EURODAC Convention currently refers to. Upon entry into
force of the Treaty of Amsterdam, the EC Data Protection Directive
will apply to data processing for asylum purposes by the Central
Unit as well as by the Member States (new Article 286 TEC). Already
in the present draft, EURODAC is linked to the EC through Article
14, which provides that the costs for the Central Unit shall be
borne by the EC Budget.
Third, we believe that Article 6a(3) of the
draft Convention, which provides for reviewing and possibly revoking
Article 6a(2), is unnecessary and should be deleted. Article 6a(2)
applies to the Convention the fundamental principle of data protection
law that data shall be held for lawful and relevant purposes only,
and states that data concerning an asylum applicant shall be deleted
as soon as that person is granted refugee status. JUSTICE considers
that revoking this Article would lower the standard of data protection
below that required by the EC Data Protection Directive as well
as the 1981 Council of Europe Data Protection Convention.
18 November 1997